Washington Report 022002

Date Published:

022002

Original Author:

Robert M. Fells

Original Publication:

ICCFA Magazine

VA now can furnish second marker in private cemeteries

by Robert M. Fells, Esq., general counsel

President Bush gave veterans and private cemeteries a Christmas present on December 27 when he signed into law P.L. 107-103, the Veterans Education and Benefits Expansion Act of 2001, which provides a series of improved veterans benefits. Among other items, the U.S. Department of Veterans Affairs (VA) may now furnish a government marker to private cemeteries where the grave has already been memorialized by a privately purchased marker or headstone. Similar to the current law providing government markers, the benefit is subject to the cemetery's rules and regulations.

For many years, both the families of veterans and private cemeteries have been frustrated by the VA's refusal to furnish a government marker if the veteran's grave site already had a marker. This new benefit is a five-year pilot program that will be reviewed by February 1, 2006, to determine how well the program has been received.

On January 8, the ICFA filed an amicus curiae or "friend of the court" brief with the Florida Supreme Court in support of a cemetery's authority to restrict markers and memorials in a memorial park to horizontal, ground-level designs. The litigation, Warner, et al. v. City of Boca Raton, involves an appeal from a 1999 federal district court decision that ruled in the cemetery's favor.

At issue is whether the Boca Raton Municipal Cemetery, an ICFA member, can legally prohibit lot owners from erecting vertical markers and religious objects, such as crucifixes and the Star of David, on grave sites in a memorial park that specifically bans such items in its rules and regulations. The outcome of this appeal could dramatically affect the rulemaking authority of municipal cemeteries in particular, and potentially all cemeteries in general.

Plantiffs are lot owners who have family members buried in the cemetery and who have installed upright markers, religious objects and, in some cases, scalloped borders around the grave and covered the sod on top of the grave with gravel and bushes. The lower federal court decision has been appealed to the U.S. Court of Appeals for the 11th Circuit, which in turn certified a question concerning the Florida Religious Freedom statute to the state supreme court.

Plaintiffs, who are supported by the American Civil Liberties Union, claim that their constitutional freedom of religious expression is being violated by the cemetery's regulation banning upright markers. Plaintiffs objected to the ICFA filing its brief and attempted to persuade the court to block the filing. However, the court ruled in the ICFA's favor.

The ICFA brief states: "The issues raised in this litigation challenge this long-established and accepted authority and threaten to undermine the ability of publicly operated cemeteries to manage their properties in an orderly, fair and fiscally sound manner for the common good of those who have purchased spaces in the expectation that established cemetery rules will be followed." Citing a long history of court decisions, the ICFA pointed out that "Cemetery regulations, by their very nature, are a series of restrictions and prohibitions over the activities permitted by lot owners, next of kin, heirs, and even visitors to the cemetery. Since the 19th century, American courts have upheld various restrictions when they were reasonable in nature and fairly administered. ... While some individual lot owners may believe that their respective 'rights' have been diminished, courts uphold restrictions that contribute to the sound operation of the cemetery as anticipated by the majority of lot owners."

The brief discussed the history and development of the memorial park concept, noting that "central to this concept is the restriction that no vertical markers or similar fixtures may be installed on any grave site in order to preserve the park-like atmosphere which is at the core of its aesthetic. Consumers who purchase burial sites in memorial parks do so with the understanding and expectation that the horizontal, borderless design will be maintained and enforced in the future. The design also impacts a memorial park's long-term fiscal planning, and the expenses incurred by the lot purchasers. Deposits to care trust funds are calculated on the less maintenance-intensive demands of ground-level markers, and compliance with worker safety regulations such as the OSHA standards are simplified in memorial parks. ... The importance of maintaining the aesthetic of the memorial park is underscored by the fact that memorial parks even forego financial benefits they could receive if they sold the more expensive vertical monuments.

"The ICFA is concerned that a finding adverse to the appellee City of Boca Raton in the present case would severely undermine the authority of municipal cemeteries in Florida (and ultimately nationwide) to assure consumers who purchase burial spaces in memorial parks that the concept and design of such burial grounds will be maintained." With reference to the plaintiffs, the ICFA noted: "While these individuals were apparently motivated by sincerely held religious beliefs, their actions deprived the majority of other lot owners and their families the type of cemetery they purposefully selected. The city's cemetery regulations ... are content-neutral. They do not single out religious objects or decorations, but prohibit all above-ground items of any nature. Purchasers in memorial parks rely upon the cemetery's authority to enforce these restrictions without regard to the ethnic customs or religious beliefs of the lot owners and such rules have been upheld by the courts for decades."

The ICFA concluded by urging the court to rule in favor of the city cemetery. "If individual lot owners become entitled to ignore cemetery regulations to do whatever they wish in the name of religious beliefs, they would effectively disenfranchise the rights of all the other lot owners and undercut the cemetery's ability to properly manage its grounds, resulting in a chaotic cemetery environment." The ICFA brief may be viewed and downloaded at the association's Web page at www.icfa.org/government.htm. Members will be kept informed of important developments in this litigation.